2010 Hague Abduction Convention Compliance Report

The U.S. State Department has just issued its latest "Report on Compliance" with the Hague Abduction Convention.

Astonishingly it lists three countries as not compliant (Brazil, Honduras and Mexico) but it lists just one country - Bulgaria - as "Demonstrating Patterns of Noncompliance."

This is a sharp departure from past practice when it listed about eight countries in the latter category.

Does this mean that our treaty partners are becoming more compliant with the terms of the treaty? Or that the State Department is backing off from criticising other countries in this regard?

I wish it were the former but suspect that it is the latter.

More Pressure on Japan & International Child Abduction

See the article below on Japan. 
Dateline NBC will be airing a piece on the case of my client,  Christopher Savoie, this Sunday, May 9 at 7:00 pm EST.

US lawmakers threaten Japan on child custody

(AFP)

WASHINGTON — US lawmakers threatened to punish Japan unless it worked to reunite hundreds of children with foreign parents, accusing Tokyo of violating human rights through its custody laws.

As Japan celebrated its annual Children's Day, lawmakers gathered near the US Capitol with a handful of tearful fathers who held up pictures of their half-Japanese children to whom they have no access.

Japanese courts almost never award child custody to foreign parents. Activists say thousands of Japanese have spirited children home, denying access to the foreign parents.

"For 50 years we have seen all talk and no real action on the part of the Japanese government," said Representative Christopher Smith, a Republican from New Jersey who is helping spearhead the legislation.

"American patience has run out," he said.

The legislation, which needs approval by Congress, would create a US ambassador-at-large for child abductions and spells out actions that the president can impose if a country does not cooperate.

The punishments range from a private demarche to barring US agencies from procuring or exporting goods to governments in violation.

The custody issue was thrown into focus last year when Christopher Savoie of Tennessee was detained in Japan for snatching his two children on their way to school and taking them to a US consulate.

Savoie, overcome with emotion, appeared at the Washington news conference and voiced hope his children would see him on television.

"Please always remember -- Daddy loves you," he said.

He accused Japan of hypocrisy, noting that Tokyo has campaigned for years to force North Korea to return Japanese civilians kidnapped in the 1970s and 1980s to train the communist regime's spies.

"They have sought and received -- rightfully -- the support of our government," Savoie said.

"But in 58 years, Japanese parents have stolen hundreds of children from the United States and the Japanese government has refused to cooperate in the return of even one" child, he said.

Japan is the only major industrial nation that has not signed the 1980 Hague Convention that requires the return of wrongfully kept children to their country of habitual residence.

Prime Minister Yukio Hatoyama said in February he was willing to sign the Hague Convention but warned that his government needed time as parliament was unlikely to ratify it in its current session.

Czech Custody Law Changes

Prague Post, April 28, 2010 by Gabriella Hold

A ruling by the Czech Constitutional Court promises to make it easier for fathers to gain custody of their children, with the court saying cases should be decided according to a child's best interests. While the decision could have a widespread impact, as one in two Czech marriages ends in divorce, critics say it pays little more than lip service to the rights of fathers.

"The position of a father seeking child custody is still very poor," said Aleš Hodina, owner of the Web site Střídavka.cz, which promotes the cause of joint custody.

"There is evidence that, in 90 percent of cases, children are given exclusively to mothers. The usual procedure is that a social worker or a judge will only look at the father's bad points and will overlook his good characteristics."

In its February ruling, the Constitutional Court effectively said fathers' rights would be given greater weighting as custody cases should be decided according to the child's best interests as opposed to the parents'. In addition, a mother's objections to joint custody will only be considered on the basis of the child's best interest.

The decree is a major reversal for Czech law, which has traditionally favored the mother gaining sole custody upon divorce. According to figures from the Justice Ministry, in 2008, a total of 18,840 cases resulted in custody being granted to the mother, and just 1,451 resulted in custody being granted to the father. A total of 635 cases resulted in courts granting joint custody.

Legal experts also say the decision will not change the landscape, as decision-making power still lies with the lesser courts.

"Unfortunately, despite the Constitutional Court decision, in the short term, we will not see radical changes in the decision-making practices in the courts of first instance and district courts that decide on child-custody issues," said Prague-based lawyer Tomáš Pelikán. "The practices are mostly determined by judges, mostly female judges, who have an agenda."
The Constitutional Court itself recognizes the fundamental problem lies in the district courts and has urged change.

"A belief in court practices still persists that it is more appropriate for a child of an early age to be brought up by its mother," said Constitutional Court President Pavel Rychetský. "But law and international conventions, however, say something else. They say both parents have equal parental rights. It is not possible to prefer one or the other on the grounds of sex."

However, observers note that, while the will for change exists, apathy and inefficiency in court procedures means the status quo will persist. Indeed, Hodina, who has been fighting for custody of his son for over a year, just lost his case last week and expects to continue fighting for some time.

"Rychetský has not come up with anything new, but it is good he opened up this issue," he said. "But the inertia of the judges, accustomed to the same processes for years, is huge. Therefore, it is necessary to constantly refer to the Constitutional Court, to the international conventions and also to our Family Code, which also refers to the child's right to both parents."

Pelikán agrees, noting the rigid and unprofessional practices of the courts of first instance means judgments on custody cases have remained intact since 1989.

"The problem first and foremost is the fact that the vast majority of judges are afraid of making decisions and instead try to make both parties come to an agreement," he said. "However, arguing parties do not want to agree and want a court decision instead. Even then, the courts of first instance are very reticent to rule against the will of one party, and subsequently most make a decision based on the custom that a child belongs to his mother."

Morocco. Hague Abduction Convention. Update.

Morocco has acceded to the Hague Convention on the Civil Aspects of International Child Abduction, effective June 1, 2010. It is the 82nd party to the treaty.

Thus far Morocco’s accession has been accepted by only two countries, Israel and the Netherlands. The treaty will enter into force with respect to those countries on June 1, 2010.

Caveat: Unless and until a treaty country formally accepts the accession, the treaty is not in force with respect to abductions between Morocco and that country.

Supervised Visitation to Prevent International Child Abduction

In a case in which an American father alleged that the child’s mother, a Moroccan-born dual U.S. and Moroccan citizen, had threatened to abduct their young child to Morocco, an Alabama appeal court has upheld a lower court order that awarded custody to the father and that required that the mother have only supervised visitation with the child. Lee v. Lee, Court of Civil Appeals of Alabama, April 16, 2010.

The parties had met in Bahrain, when the father when stationed there with the U.S. Navy and had then moved to Alabama. The father had received naval orders to relocate to San Diego, where he had secured suitable accommodation. The mother worked at "Club Med" resorts in such places as Florida and the Bahamas, from which it was inferred that she is subject to frequent relocation.

The mother assailed the requirement that her visitation be supervised, citing the proposition that a trial court may not select an overly broad restriction that does more than address a particular concern and thereby unduly infringe upon the parent-child relationship.

The Court of Civil Appeals of Alabama held that “we cannot conclude that requiring supervised visitation was not within the trial court's discretion in this particular case.” In this regard, the Court relied on the following evidence:

• The father testified that the mother had often threatened to abduct the child and transport him to Bahrain or to her home country of Morocco;

• Morocco is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;

• The father testified that, just over one week before the final hearing, the mother had stated, “If the Judge does not give me what I want, I'm taking him [i.e., the child] to Morocco.”

• Evidence in the record tending to show that the mother's father was a law-enforcement official in Morocco and that one of her sisters worked for an airline serving the Middle East.

• Evidence indicating that the mother had obtained both Moroccan and American passports for herself; and

• Evidence indicating that the mother would be able to obtain a replacement passport for the child by producing a copy, currently in her possession, of the child's birth certificate.

The Court held that, “Although our cases are silent on the point, a number of cases in American jurisdictions recognize the propriety of requiring supervised visitation when the noncustodial parent is shown to pose a risk of abduction. E.g., Shady v. Shady, 858 N.E.2d 128, 143 (Ind. Ct. App. 2006); Moon v. Moon, 277 Ga. 375, 377, 589 S.E.2d 76, 79-80 (2003); and Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998). We perceive no error here.”

For further discussion of orders preventing international child abduction, see Jeremy D. Morley, International Family Law Practice, Chap. 11, Preventing International Child Abduction.

"International family law expert offers his insight"

From http://legalcurrent.com/2010/04/16/international-family-law-expert-offers-his-insight

Practice tips

Cases involving children, spouses and families can often be complicated when one country’s laws are involved. When those cases reach across borders and time zones the complexity increases.

Now an attorney who the media has often turned to for help in understanding a complicated international family law issue – like child custody – is offering his insight in a new resource to assist United States attorneys involved in family law and collaboration with family lawyers across the globe.

Jeremy Morley provides expert guidance in International Family Law Practice, published by West.

The topics Morley focuses on in his book include international marriage and divorce, international prenuptial and postnuptial agreements, international divorce planning, recognition of foreign divorces, international child support and custody, international relocation of children and international child abduction.

Morley has been involved in several high-profile international cases involving children and families in recent years. He’s also the co-chair of the International Family Law Committee, International Law Section, of both the American Bar Association and the New York State Bar Association.

More information on International Family Law Practice is on the West Web site. And, Morley has some more information on his work and his media clips on his Web site, international-divorce.com.

Female Saudi Family Lawyers May No Longer Need Male Guardian

A Saudi news service reports that the Saudi Justice Minister plans to draft a law allowing female lawyers to try family law cases in court. Currently Saudi women are not allowed to enter courts alone. They need to be accompanied by a male guardian, not only if they are parties to a dispute but also if they are lawyers. Apparently the law will be limited to family law cases. The article does not discuss the law that women may not drive in Saudi Arabia.

Presumably if the law is enacted – which is far from certain since it has been discussed for several years and must be approved at various ministerial levels and then signed by the king – it would allow a woman lawyer to enter the court room alone but it would not remove the law that bars her from traveling to the courthouse without a male guardian or from driving there even in the company of a male guardian.

Likewise, it would not free her female clients from the requirement of a male guardian. Human Rights Watch reported that last month a Saudi woman was sentenced to be lashed 300 times and jailed for 18 months for filing complaints against court officials and appearing in court without a male guardian.

Proposed New European Choice of Law Divorce Rules

Ten European countries are about to proceed with divorce law rules that will clarify which law applies to international marriages.

The new rules will apply to Austria, Bulgaria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain. The rules will apply when one spouse of a divorcing couple has a connection with one of the listed countries.

The proposal will allow international couples to choose the applicable law if they were to separate, as long as it is the law of a country to which they have a close connection (such as long-term residence or nationality). For example, it would allow a Swedish-Finnish couple living in Spain to agree that Swedish or Finnish law applies if they were to divorce.

If the spouses themselves cannot agree on the applicable law, it will be determined on the basis of the following connecting factors:

• Divorce and legal separation are primarily subject to the law of the country where the spouses have their common habitual residence;

• Failing that, where they had their last recent common habitual residence if one of them still resides there;

• Failing that, to the law of the spouses’ common nationality; and,

• Failing that, to the law of the court before which the matter is brought.

Under this formula, the law of the country where the divorce or legal separation was requested will apply in the vast majority of cases. For example, if an international couple living abroad in another EU country asks for a divorce there, the most important factor for the court would be their country of common habitual residence. That country's laws would therefore apply.

The idea is that couples would have more legal certainty, predictability and flexibility and that this would help to protect spouses and their children from complicated, drawn-out and painful procedures. The proposals are also designed to protect weaker spouses from being put at an unfair disadvantage in divorce proceedings. At the moment, the Commission says, the partner who can afford travel costs and legal fees can "rush to court" in another country so that the case is governed by a law that safeguards his interests. For example, if one spouse from a Polish couple moves to Finland, he could ask for a divorce there after one year without the other spouse's consent.

Several EU countries have refused to participate in the new scheme. Under the EU’s “enhanced cooperation” process a group of nine or more EU countries may go ahead as a procedure of last resort when a proposal fails to win the support of enough countries through the normal EU legislative procedure. Existing national rules will not be affected, and other EU countries can decide to apply the rules at any time.

Japan & International Child Abduction: An Update

The article below updates Japan’s attempt to handle the issue of international child abduction. It highlights the fact that there is substantial misunderstanding within Japan concerning the entire issue of child custody and how the country’s accession to the Hague Convention would work. There is a very long way to go until Japan returns abducted children.

TOKYO, Feb. 24 KYODO

Japan is struggling to address international child custody issues amid renewed pressure from the United States and other countries to join a convention to deal with the problems that arise when failed international marriages result in children wrongfully being taken to Japan by one parent.

What also makes Japan wary is facing possible criticism that it is harsh in its condemnation of North Korea for abducting Japanese in the past but lags behind in dealing with the so-called ''parental child abduction'' often conducted by its own citizens.

Japan is currently considering joining the convention which provides a procedure for the prompt return of such ''abducted'' children to their habitual country of residence and secures protection of rights of access to parents to their children.

Complaints are growing over cases in which a Japanese parent, often mothers, bring a child home without the consent of the other foreign parent, or regardless of custody determination in other countries, and denies the other parent access to the child.

The problem is not new. In 2006, Canadian Prime Minister Stephen Harper raised the issue with then Japanese Prime Minister Junichiro Koizumi. Most recently, ambassadors of eight countries, including the United States, Britain, France and Australia, jointly submitted concerns, and Kurt Campbell, U.S. assistant secretary of state for East Asian and Pacific affairs, also called on Japan to work on the issue during his visit to Tokyo earlier this month.

''The issue is only going to continue to grow by leaps and bounds if you will, simply because Japanese are marrying more and more with foreigners,'' Raymond Baca, consul general at the U.S. Embassy in Tokyo, said in an interview with Kyodo News.

''This is a multilateral issue. And it affects the world community,'' he also stressed, citing that a total of 81 countries have so far signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

As of Wednesday, the Japanese Foreign Ministry has received complaints on 77 cases from the United States, 37 cases each from Britain and Canada, and 35 cases from France, according to a ministry official dealing with the issue.

As part of efforts to address the issue, the ministry set up in December the Division for Issues Related to Child Custody, and has engaged in separate bilateral talks with the United States and France to deal with specific disputes.

The ministry has also held a briefing session for the embassies of countries interested in the issue and plans to hold a closed-door seminar in March in which experts from several countries are expected to gather for discussion on the issue, the official said.

''The issue needs to be considered with haste inside the Foreign Ministry and also inside the government,'' Foreign Minister Katsuya Okada said in his e-mail newsletter released Feb. 5.

But he said that acceding to the convention may ''take a little more time'' and also noted the need to take into consideration the differences of legal system between Japan and the United States, or Europe.

''In Japan, basically there is an idea of not letting authorities intervene in family affairs, except for child abuse cases. Therefore, there is no means for coercion. But in Europe and the United States, that may sound strange,'' he said.

There are also differences on parental rights, with Japan's law giving a single parent, often mothers, full custody of children in divorce, while the United States and Europe allow joint custody.

Japan's Civil Code also does not mention about the visitation rights for noncustodial parent and many Japanese mothers are known to refuse the divorced parent to meet the child.

''I understand our two nations' approaches to divorce and child custody are very different, but, as a result, American left behind parents have little or no access to their children once abducted to Japan,'' Campbell, the top U.S. diplomat for Asia, said in Tokyo.

''The U.S. government...strongly believes that children should grow up with access to both parents,'' he also said, noting that leaving the issue unresolved may raise concerns on the positive nature of U.S.-Japan relations.

Foreign Ministry Press Secretary Kazuo Kodama said that the ministry would ''carefully'' handle the issue so as not to impair the relations with its key security ally, shrugging off the possibility of the issue becoming a diplomatic flashpoint.

But some Foreign Ministry officials are concerned that the discussion starts to have a linkage with the issue of North Korea's abductions of Japanese nationals.

''When Japan calls for the resolution of (North Korea's) abductions, we may be asked, 'So what is your country doing (in the area of child abduction)?','' a senior ministry official said.

''And if we answer that it is a cultural issue, Japan may be regarded as a selfish country,'' the official said, responding on condition of anonymity.

Indicating Japan's awkward position, several diplomatic sources said that Campbell warned senior Japanese Foreign Ministry officials during his February visit to Japan that its failure to join the convention may have adverse effects on Washington's assistance to Tokyo in trying to resolve the North Korean abduction issue.

The Foreign Ministry official dealing with the child custody issue said Japan basically has no objection to the convention's idea of setting procedures to restore the status quo before the wrongful removal has taken place, without making any custody determination.

But still government officials appear uncertain on whether they can gain full understanding from the public at the moment on the issue of Japan's accession to the treaty.

A Justice Ministry official said that the government has to be able to respond to concerns especially in relation to cases when Japanese women flee from an abusive foreign husband.

While the convention has safeguards to prevent children to return to an abusive environment, the official at the civil affairs bureau said interpretations seem to vary among countries on whether the safeguards apply to cases when the abuse is seen only toward the mother and not to the child.

The Foreign Ministry official dealing with the issue also said that there may be a misunderstanding among the public that a child's return order issued in line with the convention means that the child would have to be there forever.

While saying that the historic change of government in Japan may serve as a momentum for Japan to improve the situation, the official also said, ''To tell the truth, we have yet to come up with a good solution.''

Morocco – Norway International Child Abduction Inter-Governmental Battle

There are reports from Norway of an international re-abduction case involving the Norwegian Foreign Ministry, the Norwegian Embassy in Morocco and Special Forces officers of the Norwegian Navy. The case has led to an international crisis between Morocco and Norway.

Morocco is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.

Articles from the Norway Post:

The Moroccan Foreign Minister Taieb Fassi Fihri has asked that diplomats at the Norwegian embassy in Rabat be questioned and prosecuted, in connection with their alleged role in the Skah child custody case.

- Norway has broken diplomatic protocol, ethical guidelines and damaged the friendship between our two countries, the Moroccan Foreign Minister said at a press briefing Wednesday. He went on to say that Morocco was far from satisfied with Norway's handling of the case, in which a Norwegian woman smuggled her two children out of Morocco.

Norwegian Foreign Minister Jonas Gahr Støre maintains that neither the embassy nor his department were involved in the flight, and that he therefore can see no reason for punishing anyone.

___________

A heated dispute has arisen in Norwegian media, following reports that two special forces officers assisted a Norwegian woman in bringing her two children back to Norway, following a custody dispute with her Moroccan former husband. The two children reportedly escaped from their father's apartment and sought refuge at the Norwegian Embassy in Rabat last July.

The Norwegian Foreign Ministry say they regarded it as a "crisis situation" and allowed the children into the embassy. Three days later an embassy official drove the children to an agreed address where the children were turned over to a person representing the mother. The children and their mother were then smuggled out of Morocco on a small sailing boat.

Defence Minister Grete Faremo confirms that two officers from the Norwegian Navy's special forces were involved in sailing the boat when the mother and children were brought out, but that the two were on vacation at the time. However, Faremo says it is unacceptable for Defence personnel to participate in "such an operation", even on their time off. The opposition in Parliament (Storting) have callled for a full investigation into the case.

The children's mother had for several years sought help from the embassy, and claims that Norwegian officials earlier had not met her appeals to help her ensure enforcement of a Norwegian court order which had granted her custody of the children. There are also reports that embassy personnel and Norway's ambassador to Morocco had been threatened by the children's father.

Child custody fights could hurt US-Japan ties

The U.S. Government is clearly asserting more pressure on Japan to change its ways than ever before. See article below. On Saturday envoys from Australia, Britain, Canada, France, Italy, New Zealand, Spain and the United States met with Japanese Foreign Minister Katsuya Okada on this issue. They issued a joint statement that they were there to "submit our concerns over the increase of international parental abduction cases involving Japan and affecting our nationals." "Currently the left-behind parents of children abducted to or from Japan have little hope of having their children returned," said the statement. Such parents "encounter great difficulties in obtaining access to their children and exercising their parental rights and responsibilities," it said.

The Japanese Foreign Minister said that, "This is a very serious issue, to which we have to find a solution."

However, if past practice is a precedent, the Foreign Minister's statement means very little. The bureaucrats will take action only if, as and when they feel that they have little or no choice but to do so. We are not at that point yet. Far more pressure must be imposed.

Child custody fights could hurt US-Japan ties
By Associated Press
February 3, 2010

TOKYO - Japan should work to solve problems in international custody cases so that children of broken marriages have access to both parents, a senior US official said yesterday, hinting that the issue could hurt bilateral relations.

Visiting US Assistant Secretary of State Kurt Campbell said Japan’s position has “raised very real concerns among senior and prominent Americans in Congress, on Capitol Hill, and elsewhere.’’

Japan has not signed an international convention on child abductions, and its domestic family law permits only one parent to have custody of children in cases of divorce, nearly always the mother. That leaves many fathers, including foreigners, unable to see their children in Japan until they are grown up.

There are about 70 cases of American parents who are kept from seeing their children in Japan, and Campbell met with several of them in a group earlier yesterday. He called their situations “heartbreaking.’’

Steve Christie, an American university instructor who lives in Japan and met with Campbell, said he has rarely seen his son the past four years ever since his wife, whom he has divorced, suddenly left with the boy.

“This is our life and blood, this is our offspring, and we’re being denied a chance to see them,’’ said Christie, 50. “It’s not right, it’s immoral, it’s unethical.’’

In some cases, Japanese mothers living overseas have fled to Japan with their children and kept the fathers from having any contact, even if court rulings abroad ordered joint custody.

Australian International Child Custody Problems

We have previously expressed concerns about the impact of Australian child custody law on international family law situations.

See:
http://www.internationalfamilylawfirm.com/2008/11/australias-child-custody-law.html

http://www.internationalfamilylawfirm.com/2008/06/australian-child-relocation-abduction.html

http://www.internationalfamilylawfirm.com/2006/12/australia-child-relocation.html

Now, an Australian Institute of Family Studies report confirms that there is a real problem.  Our concern is that the problem is often greatly enhanced in international cases.

Children 'at risk' in shared parenting
By Xanthe Kleinig

From: The Daily Telegraph , January 29, 2010.

The practice of splitting child custody equally between divorced parents is being questioned after a major study found one in five parents in the arrangement believed it was not working.

An estimated 90,000 Australian children are in shared-care arrangements under a policy introduced by the Howard government with the support of fathers' rights groups.

But the largest study of the family law system, released yesterday, found a presumption of a 50-50 split was putting some children into violent homes.

Attorney-General Robert McClelland said yesterday a "misunderstanding" that parents were guaranteed equal time under the law was to blame. "Bush lawyers or pub lawyers are providing advice to people going through the system that is wrong," he said.

"We are now in a situation where people have resolved cases where the best interest of children may have not been regarded."

Family laws introduced in 2006 included a presumption of equal parental responsibility, widely interpreted as an even-time split.

But researchers said yesterday parents had agreed to shared care even when they did not have to. Other parents were disillusioned because they were not granted a perfectly equal arrangement.

And violence was not being addressed in court because of the threat of paying full court costs if the allegations were not proven.

Mens Rights Agency director Sue Price said any shift away from equal time was a "disastrous" return to the old-fashioned notion that fathers didn't count.

"It is not good for children not to have both mum and dad in their life," Ms Price said.

The Australian Institute of Family Studies report, which took three years and surveyed 28,000 people, found about one in 20 children in shared care had parents who reported violence as a risk.

"There are significant concerns around the minority of families where there are safety concerns," institute director Professor Alan Hayes said. Where safety concerns were reported by parents, children suffered but they suffered the most when they were in shared care agreements, he said.

But researchers found "overwhelming" community support for the concept of shared parenting.

Ms Price said violence by women was ignored in the three reports released yesterday.

We Wrote the Book on International Family Law

Our book, International Family Law Practice, by Jeremy D. Morley, is available on the West Publishing website.

It provides a practical approach for U.S. lawyers handling international family law matters. It focuses on international marriage and divorce, international prenuptial and postnuptial agreements, international divorce planning, recognition of foreign divorces, international child support and custody, international relocation of children, and international child abduction.

It will also be helpful to lawyers handling international family matters globally.

Netherlands: Changing Hague Abduction Case Practice

It is reported that the Dutch State will no longer take legal action against Dutch citizens in cases of international child abduction, under a legislative amendment agreed by the Dutch cabinet.

Currently, the Dutch Central Authority -- which is the part of the Justice Ministry responsible for the implementation of the 1980 The Hague Child Abduction Treaty --acts as the legal representative of the foreign parent when a child is abducted by the Dutch parent to the Netherlands. Under the new law, the Central Authority will only refer the foreign partner to an external lawyer.

The proposed bill accedes to complaints by Dutch parents that the Dutch state takes the side of the foreign parents.

International Child Abduction a Growing Problem

In many cases, parents abduct their own children when marriages fail and return home where local laws protect them. In some cases the abducted children never see the other parent again.

Child abduction is one of a parent's worst fears, and for a growing number of parents around the world, this fear is being realized and compounded by international custody disputes. In many cases, parents abduct their own children when marriages fail and return home where local laws protect them. In some cases the abducted children never see the other parent again.

On July 13, 2003, U.S. Navy Commander Paul Toland returned home to discover his wife had moved out and taken their 9-month-old daughter Erika with her. At the time, Toland was stationed at a U.S. naval base in Yokohama, Japan. His wife Etsuko, a native of Japan who had become a U.S. citizen during their marriage, took Erika and their belongings from the family's home in Negishi Navy family housing to Tokyo and told her husband she wanted a divorce. To settle the matter, Toland says they went to a Japanese court."The big issue that I wanted to discuss, the most important one, was visitation with Erika. When can I see my daughter? When I said I wanted to see Erika on weekends, the judge and the attorneys in the room laughed, and when I asked to see Erika to give her gifts on her birthday, I was told to mail the gifts to my wife's attorney," he said.

Japan is one of several countries that do not recognize joint custody of a child. The parent who does not win custody in a divorce may apply for visitation, but Toland says such rights are rarely awarded in Japan. He says even when the courts grant visitation, the parent with custody has total discretion to decide whether the child can see the other parent. After several months in court, Etsuko received full custody of Erika. Soon after, Toland was transferred back to the United States, where he continued fighting to see his daughter. The situation took a tragic turn in late 2007, when Toland learned his ex-wife had passed away. Toland says Etsuko's death was devastating, but gave him renewed hope that, finally, he would be able to see his daughter. However, Erika was sent to live with her grandmother in Tokyo. Toland says even now, as her only living parent and after spending more than $200,000 in attorney fees, he has no access to his daughter.

International family lawyer Jeremy Morley is based in the U.S. and has handled custody cases in Japan for more than a decade. He says Toland's case is not unique. "There are several cases in which the parent who took the child to a country such as Japan has actually passed away, and the child has been kept by that parent's family in the foreign country. So, the problem is that when the child is kept in a country such as Japan by the family of the taking parent, there's really no way that works to get the child back, even in such unusual circumstances. The family law system in Japan and in many other Asian countries is just not developed," said Morley.

Japanese family law attorney Satoru Kawamoto agrees, adding Japan has rightfully earned a reputation as an international haven for child abduction, a distinction he says the country will keep until it signs the world's main treaty to prevent cases like Toland's. "Currently there is no physical enforcement to bring back the child to the United States, because Japan hasn't ratified Hague Convention, so I think Japan should ratify the Hague Convention," said Kawamoto.The Hague Convention on International Child Abduction has now been ratified by 81 countries.

Attorney Jeremy Morley says that by signing and complying with the convention, countries will both combat and bring attention to this major worldwide concern. "International child abduction is a huge problem, it's growing and it's underreported. People don't recognize the existence of the problem, they don't recognize how terribly serious it is," said Morley.Commander Toland says he hopes no more parents have to experience what he has been going through. And, despite years of disappointment, he says he will never give up his fight for Erika. "I love her and I want to get to know her. I want to get to know my own daughter. I missed a lot of years with her, but I don't want to miss any more. I want to be there for her," he said.Legal analysts say Toland's case will be an uphill battle and under current Japanese law there is little he can do.

http://www1.voanews.com/english/news/usa/International-Child-Abduction-a-Growing-Problem---82239247.html

Expert Testimony in International Family Law Cases

by Jeremy D. Morley

Expert testimony is frequently needed in international family law cases.

International family lawyers are frequently called upon to act as expert witnesses.

Such testimony is often secured in cases concerning international child abduction, particularly in cases in which one parent is seeking to prevent the other parent from having overseas visitation with the child or relocating with the child to another country. However it is also useful in a myriad of other cases.

Such testimony might concern:

· The factors that indicate that an individual is likely to commit an international child abduction;

· The degree of the risk of an international child abduction that is presented by an individual having specific risk factors;

· The sufficiency of terms of a proposed custody order in preventing a potential international child abduction;

· The likelihood that a foreign country will return an abducted child;

· The lawyer's experience with and knowledge of a specific legal system;

· The division of foreign marital assets;

· The discovery of hidden marital assets; and

· The enforcement of foreign divorce and custody judgments.

Jeremy D. Morley has frequently appeared as an expert witness on international child abduction prevention, international child abduction recovery, international divorce jurisdiction and international family law.

Mr. Morley has submitted evidence as an expert in courts in the United States, Canada and Australia, in the form of testimony, affidavits or affirmations, as to such international family law matters as:

· The terms that should be in a custody order that will allow international visitation but will minimize the risk that the child may not be voluntarily returned;

· The family law system in Japan;

· The fact that particular left-behind parents would be unable to secure any meaningful assistance from the Japanese courts (many cases);

· The extent of Italy's compliance with its obligations under the Hague Convention;

· Whether certain actions committed by a parent constituted international parental child kidnapping within the meaning of the International Parental Kidnapping Crime Act;

· The rampant and scandalous misuse by many divorcing spouses of India's so-called "anti-dowry law";

· The enforceability in the United States of a proposed English shared residency order;

· The unenforceability in New York of another proposed English residency order;

· Whether a particular divorce case should be heard in a U.S state instead of in England;

· Whether Japanese non-judicial divorces would be recognized in U.S. courts;

· The dangers, in terms of potential parental child abduction, of allowing children to visit certain specific countries, including Saudi Arabia, Jordan, Germany, Mexico, Malaysia, the UAE (Dubai), Taiwan, China, Japan and Bulgaria;

· Whether the issuance of multiple passports for a child will enhance the risk that the parent might abduct the child;

· The potential recognition in a U.S. state of an Iranian divorce; and

· Whether a parent had "rights of custody" within the meaning of the Hague Convention under the laws of a U.S. state.

Dubai - Unmarried Sex More Criminal Than Rape

A British woman arrested in Dubai for sex outside marriage after making a rape complaint hopes a hasty wedding to her fiance will result in her being freed, British papers say.

The 23-year-old said she was raped by a waiter at a hotel where she was celebrating her engagement to her 44-year-old boyfriend on New Year's Eve.

But when the London couple reported the alleged rape to police, they were arrested for having sex outside marriage and being drunk outside licensed premises, the Guardian said.

The couple, Muslims of Pakistani origin, spent two days in jail and have had their passports confiscated to prevent them leaving until their court case. But the Daily Mail reports the woman has been told that she must drop the rape allegation, admit to being drunk and marry her fiance if she wants to return to Britain.

The British Embassy planned to marry the couple within weeks in the hope lawyers would drop the charges, the Mail said.

"I always dreamed of a big family wedding in Britain, but now I just want to get married so I can get out of here," the 23-year-old is quoted as saying in the The Sun. "I've done nothing wrong but I'm petrified of rotting in jail."

The woman told British papers she felt Dubai authorities were being tougher on her because she was a Muslim. "Sex outside marriage and drinking alcohol are illegal but police are normally lenient with white, non-Muslim foreigners," the Mail said.

Non-Resident Indians and International Child Abduction

Non-resident Indians always face the risk that, when their marriage breaks down, one spouse will run to India, often with the parties’ child or children, hoping for a better result in the Indian courts than in the American courts. Sometimes the children are used as hostage for a better financial settlement.

It is now reported that, in a case alleging parental abduction of a young child from England to India, the Supreme Court of India has ruled in favor of the left-behind parent. Anurag Mittal v. Rachana Aggarwal, Case No. 20333/2009, Supreme Court of India.

The reason that this is newsworthy is that Indian courts have in the past been reluctant to issue return orders in the case of the abduction of a child to India by an Indian parent. See for example the case of Sharma v. Sharma, Feb. 16, 2000, in which the Supreme Court of India refused to enforce a Texas custody order and required the lower Indian court to exercise custody jurisdiction even though the mother had removed the child from the family’s residence in Texas and had promptly commenced a case in India upon her arrival in that country.

The new case concerns a four-and-a-half year old girl who was born in England of Indian parents. The mother, who had also taken British nationality, took the child to India in September 2008. The mother’s father sought custody in India. The child’s father secured an order from the English High Court of Justice, Family Division in November 2008 requiring the child’s return to England. The Indian Supreme Court has ordered the child’s return to the U.K. It ruled that, “The decision has to be left to the British courts, keeping in mind the nationality of the child and the fact that both the parents had worked for gain in the UK and had also acquired permanent resident status there,'' adding that the English court had not directed handing over of the child to the father.

While the case is helpful it raises very considerable issues:

First, it has now been more than one year and three months since the abduction and the child has still not been returned from India.

Second, it is obvious that the left-behind parent has been compelled to incur very substantial legal expense in at least securing a favorable Indian order.

Third, apparently the left-behind father has not been able to see his child for the entire period of separation.

Fourth, the grounds upon which the decision was reached raise substantial questions as to their applicability to future cases, since the Court seems to leave substantial room for discretion by Indian judges in other international parental abduction cases.

Japan and International Child Abduction

Policy hurts Japanese nationals too

Lawyer for Christopher Savoie foresees curbs on visits 'home' with kids

By JEREMY D. MORLEY

In the debate about whether Japan should sign the Hague abduction convention, a serious consequence of Japan's failure to ratify the treaty is being overlooked. Japan's failure to sign the convention is extremely damaging to Japanese nationals living overseas, since it makes it far harder for them to bring their children to Japan for visits, and encourages them to break foreign criminal laws that prohibit international child abduction.

A key reason that Japan has not signed the treaty is that it believes the convention will help foreigners but will be of no value to Japanese citizens. That claim is not merely reprehensible, but is also entirely false.

The ordeal of my client, Chris Savoie, in losing his beloved children to Japan, has served to shine a strong light on this problem. As an international family lawyer, I have consulted with about 100 non-Japanese parents whose children have been abducted to Japan, but Chris' case is the first to have really caught the attention of the world's media.

The result is that both the public and judges in countries outside Japan are now increasingly aware that Japan:

• is a haven for international child abduction; has never ordered an internationally abducted child's return;

• has no system of shared parenting;

• does not respect foreign child custody orders;

• and has a family law system that is totally dysfunctional, at least when it comes to international relationships.

This means that if a non-Japanese parent objects to a child being taken for a visit to Japan by a Japanese parent from the parents' home in America (or another Western country), the American (or other Western) judge must now almost always bar any such visit, since there will be nothing that the non-Japanese parent could do in Japan if the Japanese parent refused to return the child. As a result, visits "home" to Japan by a Japanese mother with her Japanese-American children should no longer be permitted by American courts, since the risk is far too great that the children will be kept in Japan and never be returned.

Courts around the world are increasingly familiar with developing sensible international parenting plans for parents who live in different countries. A typical plan is that if, for example, dad is in New York and mom is in London, mom will have primary care of their children in London but the children will spend the major part of each summer holiday with dad in New York, and they will also spend either Christmas or spring vacation with dad in either city. A typical order will also provide that dad be able to speak to the kids at least four or five times a week via Skype with a webcam. Furthermore, the financial arrangements will typically be modified so that dad's child support payments are reduced because of his additional travel expenses.

Unfortunately no such arrangement could possibly work with respect to Japan, simply because Japan does not have a legal system that will enforce any part of the agreement. Japan's Family Code recognizes nothing but sole custody and makes no mention of visitation rights on the part of the noncustodial parent.
Japan's family law system, as it applies to foreign parents seeking access to their own children, seems intended to accomplish nothing except to wear out the petitioning foreign parent and to endorse the status quo in favor of the child-abducting Japanese parent. The "system" does not issue orders in contested cases, perhaps because it has no means of enforcing any of its orders. Indeed, Japan does not even have an efficient child support system within Japan, never mind on an international level.

Accordingly, U.S. and other Western courts are now basically compelled to stop international child visitation to Japan if the non-Japanese parent objects. This ridiculous result stems directly from Japan's failure to have a working family law system.

Consequently, the only way a Japanese parent will be able to take their children to visit Japan over the objections of the other parent will be by covertly removing the children. This will constitute their commission of an extremely serious crime under U.S. federal law: The crime of international parental child kidnapping is a felony in the United States punishable by three years in jail. It will typically be reported to Interpol so that an abducting parent will be subject to arrest if he or she ever travels out of Japan.

All of this means that Japan's policy is extremely damaging to Japanese parents in international marriages. Until Japan signs the Hague convention and has a system in place to give the treaty real teeth in Japan, there will be no way for a Japanese mother to take her children to Japan except with the express agreement of the non-Japanese parent, or by illegally abducting them.

Japan's hands-off approach to international child custody issues needs to change. It is to be hoped that President Obama discussed these matters very forthrightly with Prime Minister Hatoyama during his recent trip to Japan.

Jeremy D. Morley is an international family lawyer and the author of "International Family Law Practice." He represents Christopher Savoie, whose two children were abducted to Japan by their mother in violation of U.S. law. His Web site: www.international-divorce.com

The Japan Times: Tuesday, Nov. 17, 2009
(C) All rights reserved

People in Glass Houses...

Does the U.S. Comply with the Hague Convention?
By Jeremy Morley

The United States Congress has instructed the U.S. Secretary of State to issue annual reports evaluating the compliance by other countries of their obligations under the Hague Abduction Convention.

Valuable efforts are under way that seek to expand such oversight by agencies of the U.S. Government.

All of this naturally raises the question of the extent to which the United States is itself in reasonable compliance with the terms of the treaty.

The author, expressing his purely personal opinions, has substantial concern as to three issues. These are, (i) the length of time for Hague cases to be concluded in the United States; (ii) the enormous number of courts that have jurisdiction in Hague cases; and (iii) the lack of any legal aid scheme in the United States.

1. Expeditious Procedures
a. Treaty Requirements
Speedy resolution of return applications is absolutely essential to the operation of the Convention.
The preamble to the Convention states that, “The States signatory to the present Convention … Desiring … to establish procedures to ensure their prompt return to the State of their habitual residence …”

Article 1 of the Convention states that, “The objects of the present Convention are - a. to secure the prompt return of children wrongfully removed to or retained in any Contracting State.”

Article 2 of the Convention requires Contracting States to “use the most expeditious procedures available” to implement the objects of the Convention.

Article 11 of the Convention states that, “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.”

The Hague Conference Guide to Good Practice under the Convention, Part II – Implementing Measures (http://www.hcch.net/upload/abdguide2_e.pdf) repeatedly demands that states act expeditiously in such cases. In particular, the Guide to Good Practice insists that:

-“Expeditiousness is essential at all stages of the Convention process including appeals.”

-“Expeditious procedures should be viewed as procedures which are both fast and efficient.”

-“Almost all aspects of implementation (e.g. the investment of adequate resources and powers in Central Authorities, the allocation of jurisdiction among courts/administrative authorities, the procedures to be followed both at first instance and on appeal, and the ready availability of appropriate advice, assistance and representation) may have a bearing on the speed with which applications are processed.”

b. The U.S. Practice
The U.S. practice does not meet the requirements of the treaty. Hague cases can take years to complete in the United States.

Abbott v. Abbott, a case now on appeal to the U.S. Supreme Court, illustrates the problem. The child, then aged 9 or 10, was allegedly abducted from Chile to the United States in August 2005. A Hague case was commenced in a U.S. District Court in Texas in May 2006. The district court rendered its decision in July 2007, a delay of 14 months. The Fifth Circuit rendered its decision in September 2008, a delay of another 14 months. The Supreme Court granted certiorari in June 2009, a delay of another 9 months. When the Supreme Court will finally render a decision, and whether that decision will end the litigation, is anyone’s guess. The child is now 14 and has lived in the United States for well over 4 years. He is now presumably mature but may well not have been at the time the case was commenced. If he objects to returning to Chile, and if he is allowed to now so advise the Court, his wishes may well prevail. In any event if the litigation is dragged out for another year or so he will turn 16 and the case at that point must automatically end.

c. What Needs To Happen
The State Department’s annual Compliance Reports are filled with complaints about the delays in the courts of other countries. Such complaints are totally appropriate. But who is evaluating the very sorry and frankly embarrassing performance of U.S. courts.

We should examine and learn from the experiences of countries which have established a good track record in this area. Most practitioners would agree that the courts in England have achieved a remarkable degree of success in handling Hague cases expeditiously, sensibly and with substantial justice.

In England, the courts have repeatedly insisted that they are bound to render decisions in Hague cases expeditiously and to complete all proceedings wherever possible within six weeks. See e.g. F (A Child) [2009] EWCA Civ 416 (19 March 2009). Appeal courts have criticized delays in Hague cases. See e.g. Re D (a child), [2006] UKHL 51, “The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed. That object is negated in a case such as this where the application is not determined by the requested State until the child has been here for more than three years.”

Appeals in England must also be lodged within 14 days of the first instance decision. Resolution of appeals is now expedited through a fast-tracking appellate procedure. Convention appeals can be scheduled for final determination within a week of the appeal being lodged, particularly when an immediate return order has been issued. The target of six weeks is for resolution of the case in its entirety, including all appeals.

Similar practices should be adopted in this country.

2. Efficient, Knowledgeable Courts
a. The Good Practice Guide
The Hague Conference Good Practice Guide strongly encourages treaty partners to provide for the concentration of Hague return cases in a limited number of courts.

The Guide correctly states that the principal advantages of such a concentration of jurisdiction would be:
-An accumulation of experience among the judges concerned; and, as a result, the development of mutual confidence between judges and authorities in different legal systems;

-The creation of a high level of interdisciplinary understanding of Convention objectives, in particular the distinction from custody proceedings;

-Mitigation against delay; and

-Greater consistency of practice by judges and lawyers.

An exception is provided for domestic systems that do not allow for concentrated jurisdiction, in which case the (weak) suggestion is that it is particularly important that judicial training or briefing be available for judges concerned in Hague proceedings.

b. The U.S. Practice
In the United States there is no concentration of Hague cases in a limited number of courts. To the contrary, the United States has several thousand separate jurisdictions, any of which may handle Hague cases. Since there is concurrent state and federal jurisdiction for a Hague case in the U.S., each county or county equivalent (of which there are reported to be 3,140 -- see http://en.wikipedia.org/wiki/County_(United_States)), and each of the 94 federal districts, has Hague jurisdiction.

The completely different backgrounds of family court judges and federal judges means that the choice of one system or the other might have a major impact on the outcome of the case.

Most judges in the United States who might be called upon to handle Hague cases have never done so previously. In this author’s experience, it is more usual than not for a judge in a Hague case to report that, “This is my first Hague case” and then to ask the lawyers to provide special support for that reason.

The “official” response to this issue will doubtless be that, (a) it is constitutionally impossible to change this system and (b) the United States solves the problem by educating the judiciary. However, it is submitted that that is entirely unsatisfactory. The Constitution does not mandate concurrent jurisdiction in Hague cases, nor does it prevent specific judges in a State or federal district from being assigned Hague cases specifically. As for training, while some training programs are supplied, there is a very clear training gap.

c. What Needs To Happen
The State Department’s annual compliance reports are replete with complaints about the poor organization of foreign courts and the lack of training of foreign judges who try Hague cases. Again, however, it seems inappropriate to criticize other countries on these issues when our own system is in many ways so poor.

The entire system as to the courts that handle Hague cases should be reviewed and reformed so that a select group of specially trained and experienced judges handle these cases. This is precisely the system that the State Department has successfully encouraged other countries to adopt.

3. Legal Aid
In the negotiations leading to the adoption of the Convention, the United States demanded that it be permitted to exclude itself from the provision in Article 26 that countries must provide legal aid to parents who apply for the return of their abducted children. The United States and several other countries have made such a reservation.

While the U.S. is legally authorized to do so its actions in this regard do not set a good example for others to follow. At an international forum on the Convention, the Australian Central Authority’s representative stated that,
“Central Authorities are well aware that the level of assistance in obtaining legal representation, and the quality of that representation, is extremely variable in Hague cases. At one end of the spectrum is the USA where the only assistance available is through pro bono lawyers who register with NCMEC to do this work for no fee or reduced fees. At the other end of the spectrum is England and Wales where all applicants are automatically provided with experienced legal representation at no cost. It is probably fair to say that the English system of legal representation is admired by other Convention countries and sets the benchmark to which others aspire.”

Instead of doing the least that it can get away with, the U.S. should surely be at the forefront of efforts to help left-behind parents secure the return of their internationally-abducted children. American parents whose children are abducted to England receive free representation by top-notch English lawyers, courtesy of the British taxpayer. But English parents receive no reciprocity when their children are abducted to the United States, which is self-evidently unfair.

Conclusions
While there is great merit to the State Department’s review of the compliance of other countries with the Hague Convention, it would serve U.S. citizens well in this regard if the United States would put its own house in proper order as to its own compliance with the terms and the spirit of the Convention.

These are of course merely the independent personal opinions of this author.